How Trump outfoxed the founders
The shadow constitution
The men who created the American republic understood that elective systems of government are susceptible to manipulation by unprincipled demagogues who tell the people what they want to hear in order to gain and exercise power. The measures the founders employed to demagogue-proof the country worked well for more than two centuries.
Some Whigs thought Andrew Jackson a military chieftain who would turn dictator. Many Southerners disbelieved Abraham Lincoln's reassurances that he had no designs against slavery. Conservative Republicans denounced Franklin Roosevelt as a socialist. But the founders’ handiwork survived those three, and all the other presidents, with hardly a nick. (The challenge posed by the Civil War was in a different category.) Elections were held on schedule. The will of the voters was acknowledged and obeyed. The Constitution stood firm.
The Constitution will probably survive Donald Trump. But only probably. He continues to test support for defying the 22nd Amendment.
Whether he does defy the third-term ban or doesn't, it's fair to say that if James Madison and the other framers returned today, they would lament that their efforts to keep designing players upon popular grievance out of politics had failed.
What went wrong?
In two words: parties and primaries.
The Constitution decreed a filtering of the popular will in the selection of presidents. Indeed the filter was double at first. Presidential electors in most states were chosen by state legislators, who in turn were chosen by state voters. In time the states allowed voters themselves to choose electors, but the filter of the electoral college remained. The electors, men experienced in politics and valued for their experience, were presumed to be less prone to blandishment than ordinary voters.
The system operated perfectly at its first two tests. It produced George Washington as president, chosen with the vote of every elector.
But then trouble set in. By 1796 political parties were taking shape. The Federalists fell in line behind John Adams. The Republicans preferred Thomas Jefferson. Both men were qualified by experience and accomplishment to be president. The country would go wrong with neither.
Yet one would never have guessed that from the tenor of the campaign. Federalists denounced Jefferson as a radical bent on importing the anarchy of the French Revolution to America. Republicans damned Adams as a would-be monarchist. Adams won in a close contest in 1796, but he lost in a rematch in 1800, following a campaign even more scurrilous than the one before.
The framers’ conceit that the system of electors would ensure a calm, disinterested selection of the best man had been exploded by experience. The vote of the electors had become nothing more than a test of strength between the parties.
This meant that the burden of keeping demagogues away from the presidency rested with the parties. They rose to the occasion. Within a few decades they settled on the practice of selecting nominees at national conventions. The delegates to the conventions were typically men active in the life of the parties, with a stake in the parties’ enduring success.
At the conventions the delegates behaved much as the presidential electors had been expected to behave, carefully weighing the qualifications of competing candidates. The Democrats, heirs of Jefferson's Republicans, set a high bar for their decisions, requiring a two-thirds majority for a candidate to win the nomination. The modern Republicans, heirs of the Federalists by way of the Whigs, found their own methods for ensuring experience and responsibility in the men they chose.
Yet no system pleases everyone. In the early 20th century, progressive types complained that conventions were too protective of the status quo. State by state these progressives decreed that voters must be given a voice in the selection of party nominees. Primary elections were the result.
At first primaries were merely advisory. Only gradually did they become binding. Until the 1960s, the balance of power at the national conventions remained with delegates chosen by the old method of rewarding party loyalty and service.
The old method collapsed amid the tear gas that surrounded the 1968 Democratic convention in Chicago. The convention controversially awarded the nomination to Hubert Humphrey, despite the vice president’s having declined to participate in the primaries. Humphrey went down to defeat by Richard Nixon in the general election, convincing the party to change its rules. Henceforward primaries would dictate Democratic nominations. The Republicans took the message and rewrote their rules similarly.
From then until now, primaries have been the path to nominations for both parties. The sole exception was hurried acclamation that made Kamala Harris the Democratic nominee in 2024 following the belated withdrawal of Joe Biden. Harris's defeat by Donald Trump made many Democrats rue their divergence from the norm.
But primaries, combined with the dynamics of parties, produced exactly the opening for demagogues the founders had hoped to foreclose. Party zealots show up at primaries in greater numbers than party moderates. In the Republican party, those zealots in 2016 proved more sympathetic to the populist appeals of Donald Trump than to the moderate messages of the traditional candidates. Trump was likely a weaker candidate in the general election than someone like Jeb Bush might have been, but party loyalty prompted Republicans to vote for him in sufficient numbers in the right states to carry him to victory.
Trump wore out his welcome by 2020 and lost that election to Joe Biden. But the MAGA wing of the Republicans stuck with Trump and propelled him to the nomination again in 2024. Again Republicans voted Republican, and again Trump won the presidency.
How Trump will fare the second time around remains to be seen. But his path to the White House underscores how America's political system has depended on more than the written word of the Constitution. Neither parties nor primaries are mentioned in the Constitution, yet for many decades they’ve shaped the way we elect presidents. Trump's supporters are happy they led to his election. Trump's critics are dismayed. The latter might like to amend the shadow constitution to prevent another Trump. The former would surely oppose such amendments.
The actual Constitution originally placed no term limits on the presidency. The shadow constitution soon did, forbidding presidents third terms because George Washington eschewed a third term. When the shadow constitution failed to keep Franklin Roosevelt from becoming president for life, the actual Constitution was changed. The 22nd Amendment Roosevelt-proofed the presidency.
Trump's critics think the presidency ought to be Trump-proofed. Writing a formal amendment to the actual Constitution to accomplish this would be difficult. Easier would be to amend the shadow constitution, for example by restoring the primacy of conventions in selecting party nominees. The Democrats have already taken a step in this direction by providing for convention superdelegates chosen by means other than primaries. The Republicans could do the same if they decide that one Trump is enough.
They'll have to wait until Trump is gone. Not till Roosevelt died did the Democrats support the 22nd Amendment. The shadow constitution is easier to amend than the actual Constitution, but it's no pushover.
Another factor magnifying the evils of party and primary—what the founders dubbed “the evils of faction”—is partisan gerrymandering. Less than 10% of congressional districts are actually competitive between the two major parties. Thus, over 90% of US reps only worry about being “primaried” by a more extreme member of their own party, rather than being unseated by a moderate from the other party
Great article professor!
Boy do I remember 1968! I was just going on nine years old and already a news and political junkie. I stayed up all night on election night in November watching the results roll in on network TV. Prior to that, news footage from Vietnam captivated me (and others presumably, which turned the public against the war). And the Chicago convention- WOW!
As to Harris- the divergence from the norm was pretty much thrust upon her- and the Democratic Party. A primary would have been practically impossible. Biden dropped out July 21st- only a month before the convention. Also, while there may have been other candidates, conventional political wisdom is that one doesn't challenge the incumbent. Harris was nominally an incumbent and I suspect most mainstream Democrats would have backed her anyway.
As to the rules changes- they were still written with an eye toward more of a status quo. The Democratic Party had their super-delegates separately from delegates awarded at each states' primary a factor which irritated Bernie supported progressives in 2016. It shouldn't have- everyone knew the rules going in. The Dems created these "super Ds' to counter future insurgencies like McGovern's in 1968. I believe if I recall correctly, the superdelegate aspect in the Democratic party was lessened, though not removed, in the wake of progressive complaints in 2016.
I agree that having parties didn't help. Another factor is the implementation of laws against "faithless electors." Hamilton said these electors would be the block on a demogogue. But laws which prevent them from voting their conscience means that the electors are effectively irrelevant once the election is completed.
As to Republicans? The Republican zealots really showed up in 2010 as the Tea Party Republicans. Their "burn the govt down" mentality gradually got linked with other psuedo populist elements from the old Pat Buchanan clique and directly led to Trump.
Trump is clearly breaking the law. The Alien Enemies Act? go read it- he isn't following it even as he cites for a modern version of rendition to gulags. He falsely cites some emergency powers acts for invasions to justify his arbitrary application of tariffs and trade war. Never mind we are not being invaded so he has no lawful backing for his tariff actions. He is grifting foreign nations and business leaders, forcing pay for access, taking emoluments against the law. The thin check on executive power right now is a weak and corrupt Supreme Court.
Trump could not get away with what he is doing - and has done in his first term - without the direct complicity of the GOP in Congress. Their goal is to enact, while they have power, an 1880s government in the 21st century.